reservation clause in North Dakota

2012We conclude, however, that no ambiguity afflicts the expression “all other minerals.” Though the word “minerals” has varying definitions, 58 CJS, Mines and Minerals, § 2(a), p. 17, this court, prior to the enactment of § 47-10-25, held in Salzseider v. Brunsdale, 94 N.W.2d 502 (N.D.1959), that the term did not, in a reservation clause, include gravel.

2012We conclude, however, that no ambiguity afflicts the expression “all other minerals.” Though the word “minerals” has varying definitions, 58 CJS, Mines and Minerals, § 2(a), p. 17, this court, prior to the enactment of § 47-10-25, held in Salzseider v. Brunsdale , 94 N.W.2d 502 (N.D. 1959), that the term did not, in a reservation clause, include gravel.

2012Id.

2012Id.

2002In the instant case, as in Carlson [v. Minnesota Land & Colonization Co., 113 Minn. 361 , 129 N.W. 768 (1911)], the reservation clause expressly reserves “the use of such surface ground as may be necessary for mining operations.” We agree with the Minnesota Supreme Court that if the grantor was attempting to reserve the coal and iron property, surface and all, there would be no reason for it to have reserved the use of the surface for mining operations.

2002In the instant case, as in Carlson [v. Minnesota Land & Colonization Co., 113 Minn. 361 , 129 N.W. 768 (1911)], the reservation clause expressly reserves “the use of such surface ground as may be necessary for mining operations.” We agree with the Minnesota Supreme Court that if the grantor was attempting to reserve the coal and iron property, surface and all, there would be no reason for it to have reserved the use of the surface for mining operations.

2002Bender v. Aviko USA L.L.C., 2002 ND 13, ¶ 4 , 638 N.W.2d 545 . [¶ 8] Except as otherwise provided in N.D.C.C. ch. 47-09, grants are interpreted in the same manner as contracts.

2002Bender v. Aviko USA L.L.C., 2002 ND 13, ¶ 4 , 638 N.W.2d 545 . [¶ 8] Except as otherwise provided in N.D.C.C. ch. 47-09, grants are interpreted in the same manner as contracts.

1999The result, explained by the Duhig doctrine which this Court adopted in Kadrmas v. Sauvageau, 188 N.W.2d 753 (N.D.1971), is that Patricia and David, as grantees, received Mary’s one-half mineral interest, and Mary is estopped from asserting title to that interest under the reservation clause because “the warranty obligation is superior to the [grantor’s] reservation rights.” Kadrmas, supra, 188 N.W.2d at 756 .

1999The result, explained by the Duhig doctrine which this Court adopted in Kadrmas v. Sauvageau, 188 N.W.2d 753 (N.D.1971), is that Patricia and David, as grantees, received Mary’s one-half mineral interest, and Mary is estopped from asserting title to that interest under the reservation clause because “the warranty obligation is superior to the [grantor’s] reservation rights.” Kadrmas, supra, 188 N.W.2d at 756 .

2023Upon that review, we also conclude the deeds are ambiguous because of the deeds’ wording and the state of the law in 1960. [¶11] When the deeds were executed in 1960, North Dakota followed the common law rule, as we described in Malloy v. Boettcher: “In Stetson v. Nelson, 118 N.W.2d 685 (N.D. 1962), this Court followed the common law rule that a reservation or exception in a deed of conveyance cannot operate as a conveyance to a third party who is a stranger to the title or deed: ‘While a reservation and exception purporting to be in favor of a stranger cannot operate as a conveyance to him of

2021The court also concluded “reservation of other outdoor activities is permitted and must be reserved by the co-trustees when making any conveyance.” [¶20] In Hauer v. Zerr, 2020 ND 16, ¶ 2 , 937 N.W.2d 508 , we construed a 2013 deed with a reservation clause stating, “The Grantor reserves the right to hunt on any or all the premises with the privilege of ingress and egress thereto.” We concluded “the reservation [was] a severance of hunting rights prohibited by N.D.C.C. § 47-05-17.” Id. at ¶ 7. [¶21] Here, the Trust agreement directs the co-trustees to “reserve . . . the right to have access to

2021The court also concluded “reservation of other outdoor activities is permitted and must be reserved by the co-trustees when making any conveyance.” [¶20] In Hauer v. Zerr, 2020 ND 16, ¶ 2 , 937 N.W.2d 508 , we construed a 2013 deed with a reservation clause stating, “The Grantor reserves the right to hunt on any or all the premises with the privilege of ingress and egress thereto.” We concluded “the reservation [was] a severance of hunting rights prohibited by N.D.C.C. § 47-05-17.” Id. at ¶ 7. [¶21] Here, the Trust agreement directs the co-trustees to “reserve . . . the right to have access to

2013The Court in Malloy also found Willard, 102 Cal. Rptr. 739 , 498 P.2d 987 “particularly relevant” because California had a statutory provision similar to N.D.C.C. § 47-09-17, and agreed with the California Supreme Court’s interpretation that this provision was “inconsistent with the common law rule that a reservation or exception cannot constitute a conveyance to a third party.” Malloy , at 10.

2013The Court in Malloy also found Willard, 102 Cal. Rptr. 739 , 498 P.2d 987 “particularly relevant” because California had a statutory provision similar to N.D.C.C. § 47-09-17, and agreed with the California Supreme Court’s interpretation that this provision was “inconsistent with the common law rule that a reservation or exception cannot constitute a conveyance to a third party.” Malloy , at 10.

1991Relying upon principles from Fournier v. Roed, 161 N.W.2d 458 (N.D.1968), and Organized Village of Kake v. Egan, 369 U.S. 60 , 82 S.Ct. 562 , 7 L.Ed.2d 573 (1962), and rejecting the rationale of the majority of our court in State v. Lohnes, 69 N.W.2d 508 (N.D.1955), the trial court denied Hook’s motion.

1991Relying upon principles from Fournier v. Roed, 161 N.W.2d 458 (N.D.1968), and Organized Village of Kake v. Egan, 369 U.S. 60 , 82 S.Ct. 562 , 7 L.Ed.2d 573 (1962), and rejecting the rationale of the majority of our court in State v. Lohnes, 69 N.W.2d 508 (N.D.1955), the trial court denied Hook’s motion.

1991Relying upon principles from Fournier v. Roed, 161 N.W.2d 458 (N.D.1968), and Organized Village of Kake v. Egan, 369 U.S. 60 , 82 S.Ct. 562 , 7 L.Ed.2d 573 (1962), and rejecting the rationale of the majority of our court in State v. Lohnes, 69 N.W.2d 508 (N.D.1955), the trial court denied Hook’s motion.

1991Relying upon principles from Fournier v. Roed, 161 N.W.2d 458 (N.D.1968), and Organized Village of Kake v. Egan, 369 U.S. 60 , 82 S.Ct. 562 , 7 L.Ed.2d 573 (1962), and rejecting the rationale of the majority of our court in State v. Lohnes, 69 N.W.2d *566 508 (N.D.1955), the trial court denied Hook's motion.

1991Relying upon principles from Fournier v. Roed, 161 N.W.2d 458 (N.D.1968), and Organized Village of Kake v. Egan, 369 U.S. 60 , 82 S.Ct. 562 , 7 L.Ed.2d 573 (1962), and rejecting the rationale of the majority of our court in State v. Lohnes, 69 N.W.2d 508 (N.D.1955), the trial court denied Hook’s motion.

1981Perschke asserts that the following use of the term “lands” in the reservation clause demonstrates that the grantor attempted to reserve the coal and iron property, surface and all, rather than just an interest in the coal and iron itself: “Reserving and excepting from said lands such as . . . reserved and excepted coal and iron lands ... of the lands hereby excepted.” *566 In support of his interpretation, Perschke cites the case of Burke v. Southern Pacific Railroad Company, 234 U.S. 669 , 34 S.Ct. 907 , 58 L.Ed. 1527 (1914), which involved the acts of Congress making land grants to the rail

1981Perschke asserts that the following use of the term “lands” in the reservation clause demonstrates that the grantor attempted to reserve the coal and iron property, surface and all, rather than just an interest in the coal and iron itself: “Reserving and excepting from said lands such as . . . reserved and excepted coal and iron lands ... of the lands hereby excepted.” *566 In support of his interpretation, Perschke cites the case of Burke v. Southern Pacific Railroad Company, 234 U.S. 669 , 34 S.Ct. 907 , 58 L.Ed. 1527 (1914), which involved the acts of Congress making land grants to the rail

1975As to the nature of a reservation or exception, this court said in Christman v. Emi-neth, supra, 212 N.W.2d at 552 : “The Nebraska Supreme Court has defined a reservation as follows: ‘A reservation is some new thing issuing out of what is granted.

1975In this respect we said in Christman v. Emineth, 212 N.W.2d 543 , 552: “Notwithstanding that a distinction has been recognized between a reservation and an exception, it is often difficult to distinguish between an exception and a reservation in a deed.

1971In Northwestern Improvement Co. v. Norris, supra, this court held that it was the duty of the grantor in a conveyance to protect his interest against any subsequent purchaser in good faith by making certain that the reservation and exception of minerals therein was properly recorded.

1962A reservation of mineral rights cannot be availed of by a person who is not a party to the conveyance, nor can the mineral rights of such a person be divested thereby.- A reservation or exception in *688 favor of a stranger to the conveyance conveys no title to such stranger.” In the case of Beardslee v. New Berlin Light & Power Co., 207 N.Y. 34 , 100 N.E. 434 , Ann.Cas.1914B, 1287, the question was whether a reservation or exception in favor of a stranger to the conveyance was good, and the court held that such reservation or exception was void and inoperative as to such stranger, citing Wash

1962A reservation of mineral rights cannot be availed of by a person who is not a party to the conveyance, nor can the mineral rights of such a person be divested thereby.- A reservation or exception in *688 favor of a stranger to the conveyance conveys no title to such stranger.” In the case of Beardslee v. New Berlin Light & Power Co., 207 N.Y. 34 , 100 N.E. 434 , Ann.Cas.1914B, 1287, the question was whether a reservation or exception in favor of a stranger to the conveyance was good, and the court held that such reservation or exception was void and inoperative as to such stranger, citing Wash

1962A reservation of mineral rights cannot be availed of by a person who is not a party to the conveyance, nor can the mineral rights of such a person be divested thereby.- A reservation or exception in *688 favor of a stranger to the conveyance conveys no title to such stranger.” In the case of Beardslee v. New Berlin Light & Power Co., 207 N.Y. 34 , 100 N.E. 434 , Ann.Cas.1914B, 1287, the question was whether a reservation or exception in favor of a stranger to the conveyance was good, and the court held that such reservation or exception was void and inoperative as to such stranger, citing Wash

1962Martin v. Cook, 102 Mich. 267 , 60 N.W. 679 ; Joiner v. Sullivan (Tex.Civ.App.), 260 S.W.2d 439 ; Allen v. Hensen, 186 Ky. 201 , 217 S.W. 120 ; Annotation in 39 A.L.R. 132 .

1962Martin v. Cook, 102 Mich. 267 , 60 N.W. 679 ; Joiner v. Sullivan (Tex.Civ.App.), 260 S.W.2d 439 ; Allen v. Hensen, 186 Ky. 201 , 217 S.W. 120 ; Annotation in 39 A.L.R. 132 .

1962Martin v. Cook, 102 Mich. 267 , 60 N.W. 679 ; Joiner v. Sullivan (Tex.Civ.App.), 260 S.W.2d 439 ; Allen v. Hensen, 186 Ky. 201 , 217 S.W. 120 ; Annotation in 39 A.L.R. 132 .

1962Martin v. Cook, 102 Mich. 267 , 60 N.W. 679 ; Joiner v. Sullivan (Tex.Civ.App.), 260 S.W.2d 439 ; Allen v. Hensen, 186 Ky. 201 , 217 S.W. 120 ; Annotation in 39 A.L.R. 132 .

1962Martin v. Cook, 102 Mich. 267 , 60 N.W. 679 ; Joiner v. Sullivan (Tex.Civ.App.), 260 S.W.2d 439 ; Allen v. Hensen, 186 Ky. 201 , 217 S.W. 120 ; Annotation in 39 A.L.R. 132 .

1955Thornhill v. Ford, 213 Miss. 49 , 56 So.2d 23 ; Phillips v. Johnson, 202 Okl. 645 , 217 P.2d 520 ; 16 Am.Jur., Deeds, Section 298; 26 C.J.S., Deeds, § 139.

1955Thornhill v. Ford, 213 Miss. 49 , 56 So.2d 23 ; Phillips v. Johnson, 202 Okl. 645 , 217 P.2d 520 ; 16 Am.Jur., Deeds, Section 298; 26 C.J.S., Deeds, § 139.

1955Thornhill v. Ford, 213 Miss. 49 , 56 So.2d 23 ; Phillips v. Johnson, 202 Okl. 645 , 217 P.2d 520 ; 16 Am.Jur., Deeds, Section 298; 26 C.J.S., Deeds, § 139.

1955Thornhill v. Ford, 213 Miss. 49 , 56 So.2d 23 ; Phillips v. Johnson, 202 Okl. 645 , 217 P.2d 520 ; 16 Am.Jur., Deeds, Section 298; 26 C.J.S., Deeds, § 139.

1951“After severance, the surface and minerals are held by separate and distinct titles in severalty, and each is a freehold estate of inheritance.” Beulah Coal Mining Co. v. Heihn, 46 ND 646 , 180 NW 787 ; 58 CJS 306, 328; Whiles v. Grand Junction Mining & Fuel Co., 86 Colo 418, 282 Pac 261 ; Jensen v. Sheker, 231 Iowa 240 , 1 NW2d 262 ; Ohio Oil Co. v. Wyoming Agency, 63 Wyo 187, 179 Pac2d 773.

1951“After severance, the surface and minerals are held by separate and distinct titles in severalty, and each is a freehold estate of inheritance.” Beulah Coal Mining Co. v. Heihn, 46 ND 646 , 180 NW 787 ; 58 CJS 306, 328; Whiles v. Grand Junction Mining & Fuel Co., 86 Colo 418, 282 Pac 261 ; Jensen v. Sheker, 231 Iowa 240 , 1 NW2d 262 ; Ohio Oil Co. v. Wyoming Agency, 63 Wyo 187, 179 Pac2d 773.

1951“After severance, the surface and minerals are held by separate and distinct titles in severalty, and each is a freehold estate of inheritance.” Beulah Coal Mining Co. v. Heihn, 46 ND 646 , 180 NW 787 ; 58 CJS 306, 328; Whiles v. Grand Junction Mining & Fuel Co., 86 Colo 418, 282 Pac 261 ; Jensen v. Sheker, 231 Iowa 240 , 1 NW2d 262 ; Ohio Oil Co. v. Wyoming Agency, 63 Wyo 187, 179 Pac2d 773.